Posted
by
timothyon Thursday June 10, 2010 @05:29PM
from the civil-procedure's-too-good-for-'em dept.

An anonymous reader writes "A judge has rejected SCO's motion for a new trial in the company's dispute over UNIX intellectual property ownership. The ruling validates a verdict that was issued in April by a jury who determined that Novell, and not SCO, is the rightful owner of the UNIX SVRX copyrights. This means SCO cannot continue to pursue its litigation against IBM and other Linux users. 'There was substantial evidence that Novell made an intentional decision to retain ownership of the copyrights,' the judge wrote in his decision. 'The Court finds that the verdict is not clearly, decidedly, or overwhelmingly against the weight of the evidence. Therefore, SCO is not entitled to a new trial.'"

Come on guys. Groklaw [groklaw.net] has been covering this thing since the very beginning. The least you could do is link to the article [groklaw.net] there. Give a little respect to Pam Jones for following this long slog like a trouper.

So true, I'll always remember when I changed the time on a SCO box at an old job and was told by an old hack there not to issue a simple "date MMDDhhmm" command but to use the crappy curses-based admin console to do it. It said I needed to "relink" the kernel (after changing the time for the love of Pete) then crapped out a kernel panic and disconnected me from the already dodgy modem. I think it took the field engineer about a day to reinstall all because it didn't adjust properly for daylight savings th

I used SCO UnixWare at the Space and Naval Warfare group in the US. It took me all of a couple of days to persuade the powers that were that replacing it with Red Hat Linux would boost the NAS storage speeds beyond their wildest dreams (it did) and would accelerate development no end (you can run on a SCO box even if you don't develop on it).

Don't worry. There will almost certainly be another opportunity. This thing just won't die.

I'm not saying that SCO won't try to appeal, but this judgment together with the result of the jury trial leaves them very little to work with. SCO asked that the question of copyright transfer be decided by jury, which it was. They agreed to specific performance being decided by the judge. They were granted so much lassitude before and during the trial that if anyone has the right to complain it is Novell.

The threshold for overturning a jury verdict is high. Now that Judge Stewart has reached essential

They may be able to drag out the process for a few more months, perhaps even years,

And people argue the US legal system isn't broken. If that's not proof, I don't know what is. There is a huge difference between ensuring a fair trail and the "travesty of justice", which this case exemplifies of the US legal system.

I think a lot of it is that the US legal system is designed to handle legitimate cases. There's just not much precedent for someone destroying their company to pursue legal action that served solely (IMO) as means to facilitate an extortion ring ($699 license fees on copyrights SCO doesn't own) and a stock scam (go Team FUD!). Throw in the technical complexities, and it's definitely an outlier that I'm not sure is good proof of anything.

Actually, if you do some checking, this is par for the course. There is nothing out of the ordinary about this case aside from the fact the litigants have much deeper pockets than normal, and accordingly are perhaps more press worthy.

If you want justice:1) SCO will no longer be able to argue to the Bankruptcy court that it still has a reasonable chance of success with their litigation, so they will be forced to focus their resources. They can no longer rely on plausibility of winning their IBM case, because they essentially have no case now. Not to mention, there's now a good whack of counterclaims that IBM will be drawing out of them, and they're basically entirely crippled now. The Judge gave them the option to waive their IBM suit, a

But does anyone on Slashdot don't know that Groklaw has been covering it from day one?I mean really? When you say SCO you might as well say Groklaw for most people on here.Of course it is also hard not to use some colorful language before or after those three letters as well.

Yes, so indeed did I. Not just read. I joined, commented, contributed cash, believed the hype, thought I was helping, proofed, supplied corrections blah, blah.
Then saw the insidious, and frankly ugly, nature of the moderation system, plus I couldn't quite reconcile the "open source" rhetoric on the site with the "This is my space, agree with me completely or fuck off"
Oh yes, and the attack dogs. Jeez, disagree & you'd be jelly in a blender. "You dare impugn the God that is Pamela Jones? I will hunt down your children"

plus I couldn't quite reconcile the "open source" rhetoric on the site with the "This is my space, agree with me completely or fuck off"

I don't see the contradiction here. An Open Source/Free Software project can indeed be run by an unpleasant person, and can be wildly successful despite that. The key difference between a FOSS project run by an egotistical territorial micromanaging sociopath and a proprietary software project run by, well, let's not name names, is that you can fork the FOSS one if you c

Actually I hate to say it because frankly I do find many of the comments on Slashdot to be rude, inaccurate, profane, and immature when compared with the comments on Digg, CNN, and TCPalm it is like going to a formal dinner with Nobel prize winners, statesman, and versions and sundry PHDs and people that spend their time working with worthy charities!Good heavens have you ever read the crap on CNN.com!

Here you go, munchkins. Judge Ted Stewart has ruled for Novell and against SCO. Novell's claim for declaratory judgment is granted; SCO's claims for specific performance and breach of the implied covenant of good fair and fair dealings are denied. Also SCO's motion for judgment as a matter of law or for a new trial: denied. Novell is entitled to waive, at its sole discretion, claims against IBM, Sequent and other SVRX licensees.

CASE CLOSED!

Maybe I should say cases closed. The door has slammed shut on the SCO litigation machine. The judge writes in the Memorandum Decision and Order about SCOsource, "Finally, while SCO's witnesses testified that the copyrights were 'required' for SCO to run its SCOsource licensing program, this was not something that SCO ever acquired from Novell." He totally got it. He noticed Darl McBride admitted that SCO didn't need the copyrights for anything but SCOsource. It couldn't be any better if I'd written it myself.

Was the jury misled or confused? Not at all, the judge writes: "The jury could have rejected the testimony of SCO's witnesses for a number of reasons, including their lack of involvement in drafting the APA, the fact that there was little testimony on any actual discussions concerning the transfer of copyrights, or that many of the witnesses had a financial interest in the litigation."

"The Clerk of the Court is directed to close this case forthwith," Stewart writes in the final judgment. I believe that means SCO v. IBM is essentially over now, unless IBM wishes to pursue its counterclaims.

And now it is -- finally -- time, once again, for my red dress! And a huge thank you to Michael Jacobs and the team at Morrison & Foerster, who never gave up but, more importantly, showed that you can fight hard and win with ethics and dignity, and to Sterling Brennan of Workman|Nydegger, who was frankly absolutely wonderful at trial. And thank you to you, Groklaw volunteers, because we made a difference in this world.

Come on guys. Groklaw [groklaw.net] has been covering this thing since the very beginning. The least you could do is link to the article [groklaw.net] there. Give a little respect to Pam Jones for following this long slog like a trouper.

Come on guys. Groklaw [groklaw.net] has been covering this thing since the very beginning. The least you could do is link to the article [groklaw.net] there. Give a little respect to Pam Jones for following this long slog like a trouper.

>Fair play (sic) to Ars: they at least did some real reporting while all PJ did was post 5 sentences and copy+paste the decision. Besides, it looks like Ars report was first.

The Ars Technica article has no real reporting beyond paraphrasing the judgment. There are no "new facts" that aren't in the actual judgment. So why not instead actually go to the site that has the judgment, as well as informed commentary on the judgment (groklaw)? You know, "view the source"...

It took time to add links to the footnotes of the text of the decision. Over time, in the way Groklaw works, the footnote text will become links to text versions of the associated documents, which link to the official court PDFs, and a link to the blog post will appear in the summary page here [groklaw.net], or a child page. That's how Groklaw does things. The members contribute to fund the purchase of the documents from the court. Groklaw was a tiny bit slower than Ars Technica this time but in the fullness of time

Community: "It's not pinin,' it's passed on! SCO is no more! It has ceased to be! It's expired and gone to meet its maker! This is a late company! It's a stiff! Bereft of life, it rests in peace! If you hadn't nailed him to the perch he would be pushing up the daisies! Its metabolical processes are of interest only to historians! It's hopped the twig! It's shuffled off this mortal coil! It's run down the curtain and joined the choir invisible! This.... is an EX-COMPANY!"

SCO: "I'm not dead yet"

At least IBM, Novell etc. got the pockets to handle it. A smaller company could have been legally torpedoed by this, even if they eventually won some what, 8 years down the road now?

San Jose, CALIFORNIA. In response to a judge's dismissal of it's demands for a new trial today, SCO filed 10,000 new lawsuits against various entities including IBM, Oracle, and G-d. "One of these must stick," said SCO's Chief Extortion Officer. "It's not about principle. It's about being money-grubbing assholes."

It would have been more believable if you'd mentioned that SCO had hired *IAA's legal team to sue the first 10,000 Linux users in its efforts to stop the piracy of the Unix source code it doesn't rightfully own.

It would have been more believable if you'd mentioned that SCO had hired *IAA's legal team to sue the first 10,000 Linux users in its efforts to stop the piracy of the Unix source code it doesn't rightfully own.

The head of Daryl McBride is seen in court appealing the latest decision against SCO which declared Daryl McBride not eligible for compensation for inclusion into Futurama episodes on the grounds that he is "just wasting space now that other more important heads need shelf space for. Like Tiger Woods 9th wife" said Leyla. Bender, while trying to get McBride to bite his shiny metal ass, broke the head jar and dropped the head of McBride accidentally into a metal stamping machine. The head of Pam Jones laughed her jar fluid into a total froth while Fry looked on confused.

NOVELL V TSCOG: Goes to Novell (this is the basis for the rest of the Litigation Lotto)TSCOG V IBM : the case that started it allWAIVED BY ORDER OF NOVELL (IBM does get the counter claims)SUSE V TSCOG (arbitration): Rendered Moot (lack of grounds)The Sco Group bankruptcy Chapter 11: to be converted to Chapter 7 (a chunk of the money is now owed to NOVELL)

All it requires is for someone with stacks of time and money to take a look at the SCO corporate profile [sco.com] and sue them on the basis that just about everything written on that page is a lie.

I mean, does anyone really think that SCO is a "leading provider of software technology", or that their "highly innovative and reliable solutions help millions of customers grow their businesses everyday". As we have just seen, "SCO owns all rights and ownership of the core UNIX operating system source code" is about as un

"highly innovative and reliable solutions help millions of customers grow their businesses everyday"

With SCO Unix in several cashier machine models and in phone systems from Siemens Enterprice Communication, you could actually say, that at least millions of people use SCOs product to conduct their business every day.

So beside the "innovative", everything else in this sentence might actually be somewhat trueish.

1. Remember that cutting off the legal arms does no good.2. Remember that zombie companies can continue to be threatening even if they have no leg to stand on.3. Exposing and severing the connection between the brain and the rest of the corporate body may help, but the remaining parts can still remain dangerous, and typically twitch for some time.4. Corporate zombies are often controlled by evil overlords. Real victory occurs only after the evil overlord is slain.5. Remember that anything that was once good and lovable about the company that has been zombified is long gone and completely unrecoverable.6. Zombie companies are frequently covered in parasites (lawyers).

The article seem to suggest that the SCO v IBM is over. That's not quite correct. SCO's claims against IBM most likely will be voided. IBM however has counterclaims. At this point, IBM can't get much money but knowing IBM, they want to make an example of SCO so that no other company will do this to them again.

SCO claims that IBM took IP from Project Monterrey and used it in AIX on their Power architecture. Under the terms of their deal, IBM could only do that if they also released Monterrey on Intel's Itanium. However Itanium was an troubled architecture that never found many customers and IBM backed out of later having only sold 40 licenses by 2002. According to former SCO CEO Ransom Love, IBM offered to pay SCO for their troubles but SCO refused. [practical-tech.com]

Actually IIRC IBM took code from AIX on Power and put it into Project Monterrey. SCO's claim was that IBM then took that code and contributed it to Linux, essentially claiming that they had control over anything that'd even touched Monterrey regardless of origin. The claim was even more ridiculous because the code they claimed IBM had contributed (JFS) wasn't the code contributed to Monterrey. IBM had originally written JFS for AIX on Power. Their Linux team had to create a completely new implementation of JFS from scratch, because the AIX driver couldn't be ported over to x86. And in fact the Linux team came up with such a superior implementation that IBM removed the original JFS driver (the one that got contributed to Monterrey) from AIX and ported the Linux JFS driver over to AIX on Power. So had SCO gotten past the twin hurdles of claiming control over IBM's independently-developed code just because it was contributed to Monterrey and the code they were suing over never having been contributed to Monterrey, they would've faced the hurdle of the code having come from Linux to Monterrey and not the other way around.

Of course, that's par for the course for SCO. Remember that their first allegedly infringing piece of code turned out not to even be theirs. The malloc() code they claimed was copied from SCO Unix into Linux turned out to be a piece of earlier code (released both under the BSD license multiple times and into the public domain by it's original author) that both SCO Unix and Linux had gone and used (well, SCO Unix used it, Linux had dropped it in favor of more modern code and when it was found the reaction was "What's that still doing there? Get rid of it, it's not being used and it's just cluttering things up.").

I can't wait for IBM to sue for all the time and money spent [groklaw.net] just to gather the source code:

Complying with the Court's Order involved more than 4,700 hours of work from more than 400 IBM employees. This does not include the time spent by IBM's counsel and consultants on this project, which was likewise considerable. IBM produced a total of more than 80 GB of source code and other electronic data to SCO, and more than 900,000 pages of paper (which were scanned and produced in electronic form on CDs).

If IBM even charged SCOg for even the standard Mainframe rental fee for the past 7+ years SCOg would be defunct. On top of that they should also charge for the interest on the money not paid for that forced 'rental', just to twist the legal blade a little for good measure. IBM of course could never hope collect on that debt, or any other, but it would stand as an example to the next extortionist plan wielding threat monger to think twice. I can't wait to hear official news of the IBM counter charges suit go

If SCO pull something out of their collective backsides to try and continue this (which I wouldn't be surprised to see - it's really quite incredible what Darl McBride has stuffed up his arse), I rather suspect this will wind up going on longer than the Bush administration.

Get real, that's tantamount to saying Novell screwed SCO over with the APA - which is utter crap.

SCO knew exactly what they were getting at the time, which WAS NOT the copyrights, because they didn't have the money to buy them. Why would they agree to pay 5% back to Novell if they were buying the copyrights outright?

Why do you insist others to produce possibly erronous summarization about what takes some five minutes to read yourself? But I'll be so kind to give you a snippet from the decision:

Those "certain assets" are set forth in more detail in Schedule 1.1(a) and do not include the excluded assets set out in Schedule 1.1(b) Under the plain language of the original APA, the copyrights were excluded from the transaction.

You can read APA from Groklaw [groklaw.net] or google for it. In the APA search for phrases schedule 1.1(a) and

I thank you for the references. I can see why SCO could have thought they bought all the rights. The full quote is "All copyrights and trademarks, except for the trademarks UNIX and UnixWare." So a casual reading of this quote might give the impression that the UNIX copyrights were part of the except clause. Note that it would have been clearer to say "All copyrights and all trademarks except UNIX and UnixWare" if that was the actual intent.

No, it wasn't any unfortunate mistake on SCO's part. It was deliberate attempt to try to wrestle UNIX copyrights from Novell and/or possibly harass Novell (or more likely IBM) to buy them out. Some say it was a plot masterminded by Microsoft to hurt Linux but I haven't seen any clear evidence on that.

And why I think it was deliberate attempt to get UNIX rights?

SCO asked Novell to join them in a scam to squeeze money out of Linux users by frivolous lawsuits (which would have been blocked by the GPL). Novell

And now I'm awaiting what all the SCO pundits have to say. O'Gara, Lyons, Enderle, and Paul Murphy. Come on fuckers, we want to hear you explain your idiocy. Or are you going to flee with your tails between your legs?

If you're thinking of "Scouser", it's the term for somebody from Liverpool. I don't think it's ever used in anything but it's factual sense. Whether that's abusive depends on what you think of coming from Liverpool. Me, I'm Scouse and proud of it.

I would think about changing my line of work if I was assigned SCO versus the World.

Nah. What you've got there are lawyers who are getting paid. Doesn't matter if what they are doing is wrong and hopeless. Look at a lawyer's paycheck. For that, Sisyphus would probably wake up cheerful and show up for a day's work with a smile.

This is just lawyers being lawyers for the most part. Sure you get some good ones every so often, like Ray Beckerman. People who actually get into the field because they wish to be superheroes. But 99.9% of the world - regardless of their job - just want to get paid.

And you and I are probably no different. I've worked on software projects that were doomed. How about you? I worked on a project once for 3 years that I knew 6 months in was going to wind up in a box on a shelf. Did I care? Hell no. I was making a paycheck during the dot bomb. Plenty of my coder friends weren't.

Once SCO finally runs out of cash these guys will move on. Some of them will wind up working for Save the Puppies, some for the RIAA. Both will sleep well that night. It's just a job.

Oh, one more thing. The SCO lawyers didn't lose. They did what Microsoft (via BayStar) paid them to do. Defame Linux. I'm sure the instructions went like this. "Make it drag out as long as you can. Sew fear and doubt. Never surrender!" Fifty million bucks buys a lot of moral flexibility. And these are lawyers, which is a profession that isn't overly burdened with saints.

And on their resume for their next job they can say that they spearheaded an impossible effort. They moved market share towards their customer and away from an open source project that has a nebulous cloud of people working on it. They attacked a ghost, did it for a decade, and did that with a tenacity that would make a pit bull proud.

There are many places where someone with that kind of determination and moral flexibility would be most welcome. I expect a lot of these resumes to wind up on the desks of BP's HR department sometime in the near future.

But - I wouldn't call it a defense of lawyers so much as a defense of humanity in general, of which lawyers (presumably) are a subset. We all like to get paid. Food and shelter are awesome, and we'll all occasionally do something "morally flexible" to achieve it. I have. I'll admit that.

It's just when lawyers do something morally flexible, it looks like what these SCO guys are doing. There is nothing mysterious about it.